C-66/79

In J o i n e d Cases 66, 127 and 128/79

R E F E R E N C E t o the C o u r t u n d e r Article 177 of the E E C T r e a t y by the C o r t e S u p r e m a di Cassazione [Supreme C o u r t of C a s s a t i o n ] , R o m e , for a preliminary ruling in the action p e n d i n g before that c o u r t between

AMMINISTRAZIONE DELLE FINANZE v SALUMI

AMMINISTRAZIONE DELLE FINANZE [Italian Finance Administration]

and

S.R.L. MERIDIONALE INDUSTRIA SALUMI;

on the temporal scope of interpretative judgments delivered by the Court of Justice under Article 177 of the EEC Treaty,

THE COURT

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT OF 27. 3. 1980 — JOINED CASES 66, 127 AND 128/79

I — Facts and p r o c e d u r e 2. In Italian law, according to Article 6 (1) of the Introductory Provisions to the Customs Tariff approved by Decree No 723 of the President of the Republic of 1. Most if not all of the Council regu- 26 June 1965 (Supplement to the lations on the common organization of Gazzetta Ufficiale [Official Gazette] No the agricultural markets which provide 160 of 1 July 1965) the rate as regards for the charging of import levies provide customs duties applied to imported that the amount of the levy which is to goods is that in force "at the date on be charged is that applicable "on the day which the import declaration is accepted of importation". In its judgment of 15 by the customs authorities". This June 1976 (Case 113/75, Giordano provision thus corresponds to the sense Frecassetti v Amministrazione delle which the Court of Justice gave to the Finanze dello Stato, [1976] ECR 983), concept of "day of importation" as the Court of Justice interpreted the regards levies in the judgment in the expression "day of importation" as being Frecassetti case. The rule laid down in that "on which the import declaration Article 6 (1) was applied by the Italian for the goods is accepted by the customs authorities both for the purpose of fixing authorities". That judgment was the rate of the agricultural levies and for delivered in a dispute relating to the the purpose of fixing that of the customs question whether, where the levy is duties. Article 6 (2) however provides reduced after the date on which the also that where the duty is changed after import declaration is submitted, the the date referred to in paragraph (1), the national authorities may apply to agri- customs authorities may, at the request cultural levies the Commission of the importer, apply the most Recommendation of 25 May 1962 favourable rate provided that the goods (Journal Officiel 1962, p. 1545) with have not been released to the importer. regard to customs duties which This rule too was applied by the Italian recommended that where the customs authorities both as regards agricultural duty was reduced after the import levies and as regards customs duties. declaration was submitted but before the goods were released for home use, the Member States should apply the most favourable customs duty. In the above- mentioned judgment, the Court rejected 3. When the judgment in the Frecassetti application of that rule with regard to case was delivered, the Italian levies; the amount of the levies due must Government, to comply with it,

4. However, before the date of the judgment in the Frecassetti case, the Finance Administration had already required the three undertakings Salumi, This interpretation did not coincide with Vasanelli and Ultrocchi to pay additional that which the Court of Justice was sub- amounts on levies relating to imports of sequently to accept in the judgment in beef and veal because the rule known as the Frecassetti case. The dispute went that "of the most favourable rate" had before the Corte di Cassazione. In the been applied by mistake. course of the proceedings Decree No 695 of the President of the Republic of 22 September 1978 amending Article 6 of the "Preliminary Provisions of the Customs Tariff" was adopted but limiting, as stated above, the retroactive At an early stage in the dispute, the effect of the new provision to the period Italian authorities appear to have relied after 11 September 1976. At the level of primarily if not solely on the the Corte di Cassazione the controversy infringement of the provision of national extended to the question whether the law according to which the "most limitation, by the mention of that date, favourable rate" may only be granted at of the declaratory ex tunc effect of the the request of the importer, a request judgment in the Frecassetti case was or which was not made in that case. was not in conformity with Community law. The Italian authorities maintained the viewpoint that that limitation was entirely in conformity with Community law, since the national legislature had The objection made by the three under- merely accepted a principle belonging to takings in question against the orders the Community legal order upon which

Thus the problem arises whether, where the interpretation of a rule of "(a) For the purpose of Article 177 of Community law is in doubt and where a the EEC Treaty where, in respect misinterpretation shared by the parties in of imports and with regard to question has given rise meanwhile to relationships as yet undefined payments which were not owed or to the according to their own national failure to collect sums payable, the law, the national authorities of a correct application of the Community State have charged amounts which rules may only be required as from the they should not have charged or, date on which the Community rules were on the other hand, not levied authoritatively interpreted and the points amounts which they should have of conflict existing between those levied pursuant to the Community Community rules and the provisions of provisions applicable in that sector internal law were determined by the according to the interpretation competent authority. subsequently placed upon them by judgment of the Court of Justice, does that judgment also apply to such relationships within the 5. The Corte di Cassazione pointed out domestic legal system of the that the mention of the date of 11 Member State or not, or does it September 1976 in the Decree of the apply subject to specific limits and President of the Republic of 22 on specified conditions: if the latter September 1978 may be interpreted in is the case, what are those limits two different ways, either that it merely and conditions? constitutes an opinion of the legislature which does not bind a person in- terpreting the law or on the contrary that it has a legislative value in the sense that (b) Also for the purposes of Article 177 for the period before 11 September 1976 of the Treaty, is it prohibited or in spite of the judgment in the Frecassetti required by Community law or case, the Italian authorities are irrelevant in relation thereto that in prohibited from recovering the difference respect of such relationships those between the amount of the levy in force concerned are empowered under on the day of importation and the national law to institute pro- smaller amount which it in fact charged ceedings to claim or recover, on the at the date on which it applied to the basis of the interpretation provided levies the rule of the "most favourable by the judgment of the Court of rate". The court considered that the Justice, amounts due but not second hypothesis was such as to "raise collected or amounts paid in doubts as to the chronological error?"

On hearing the report of the Judge- Rapporteur and the views of the As the Community texts have no special Advocate General the Court decided to provision regarding the effect ratione open the oral procedure without any temporis of preliminary rulings the preparatory inquiry. criteria relating to such effect must be found in the case-law of the Court. That case-law includes numerous judgments establishing as from what date a Community rule has direct effect and II — W r i t t e n o b s e r v a t i o n s s u b - from what date "individual rights which m i t t e d u n d e r A r t i c l e 20 of the courts must protect" are acquired. t h e P r o t o c o l on t h e S t a t u t e However, it was only as from the of t h e C o u r t of J u s t i c e of judgment of 8 April 1976 (Case 43/75, the EEC Defrenne, [1976] ECR 455) that the Court had to consider the temporal scope of its judgments. Emphasizing the uncertainty arising for the national auth- A — Observations of the defendants in orities from the temporal effect of pre- the main action (Salumi, Vasanelli liminary rulings on matters of interpre- and Ultrocchi) tation the defendants remark that the alternative between the effect ex tunc or the effect ex nunc of a judgment is less After recalling the facts of the case and straightforward than appears at first the course of the procedure before the sight. In fact the retroactive effect might

JUDGMENT OF 27. 3. 1980 — JOINED CASES 66, 127 AND 128/79

(a) As regards the ex tunc effect In the case of a systematic interpretation, if it is based on aspects of the system prior to the provision in question or A first factor in support of the argument contemporaneous with it, it is permissible that judgments giving preliminary rulings to suppose, at least in the abstract, that take effect ex tunc follows directly from the interpretation relates equally to the the function of interpretation with which only meaning to which the "Community the Court is entrusted. To give an in- legislature" was in a position to refer at terpretation is to recognize and to make the time. On the other hand where the manifest the meaning of a provision and systematic method relates to the system the meaning thus made clear resides in force at the time when the Court gives from the beginning in the provisions its decision and where the system has interpreted. This opinion, which flows undergone changes of which the inter- from the declaratory nature of the pretative judgment takes account, only a judgment, has often been used by legal fiction would make it possible to commentators in national law and it is consider such a judgment as a not surprising that the authors of declaration of the original content of the Community law should have had provision interpreted. recourse to the same type of argument; nevertheless, this would be to neglect the experience arising from the procedure under Article 177 and the diversity of the Recourse to analogy, to natural justice, Court's judgments both as regards the to the comparative method and resort to

According to the defendants in the main action it is also necessary to check whether the ex tunc effect of the in- The result of judgments delivered by way terpretative judgment is justified in the of preliminary ruling is also very light of the structural relationships between national procedure and the variable. Some of them establish the procedure for preliminary rulings as well meaning of a text in terms which are as in the light of the validity ultra partes extensive or restrictive, others relate to of the judgment given by the Court. the binding effect of a Community measure or the direct applicability of a Community rule or again read into a Community measure effects not only between Member States or the Community institutions on the one hand As the procedure for a preliminary ruling and the individuals on the other but also is set in motion only following a decision between individuals. Although when the by a national court to submit a question Court restricts itself to declaring the it is reasonable to deduce that the meaning of a provision it is permissible judgment of the Court must have retro- to reflect spontaneously that the interpre- active effect so as to resolve the dispute tation is valid from the moment when between the parties to the main action. the provision in question came into From this first finding it is permissible to force, the position would be different confirm the principle that interpretative when the judgment fills gaps in the judgments given in pursuance of Article system by offering a kind of pretorian 177 in general have an effect ex tunc. law. In the first instance there is no This line of argument is the more reason why the interpretive judgment plausible because it has also been applied should not have a retroactive effect when with regard to the temporal effect of a it brings into being for individuals vis- judgment by which the Italian Con- à-vis Member States individual rights stitutional Court declares a national law which national courts must protect, but if unconstitutional. Such a declaration is it brings into being obligations for tantamount to a declaration of the individuals it is necessary to check invalidity of the unconstitutional

provision and such invalidity goes back to a certain date. As regards the effect of to its origin. However, according to the the judgment, in Case 43/75, Defrenne, defendants in the main action, it does referred to above, the Court, after not seem possible to transpose that mentioning the exceptional nature of argument to the interpretation of certain circumstances in the case under Community law because the judgment of consideration indicated that the retro- the Court which indicates the correct active effect of its judgment was limited. interpretation of the provision in question involves the illegality of a different interpretation, but does not make it possible to infer the invalidity of the provision if and so far as it has been interpreted in a manner now declared To these doubts there may be added illegal. others proceeding both from a forced approximation between the preliminary interpretation and the authentic interpre- tation and from the effects which it seems necessary to attribute to the authentic interpretation; this type of argument in fact appeals too widely to analogy and metaphor; the retroactive effect of the authentic interpretation is The effect erga omnes attributed, subject subject to restrictions and reservations. to certain reservations, to the interpre- tation in a preliminary ruling has led certain writers to attribute a "quasi- authentic" value to the case-law involving Article 177. It might therefore be tempting to attribute a retroactive effect to the preliminary ruling as to the (b) As regards the ex nunc effect authentic interpetation. This line of argument is confirmed in certain judgments of the Court where, at the express request of the national court, the Court of Justice, after stating that a Community provision has direct effect, has indicated that it had an effect ex According to the defendants in the main tunc. However, it would be risky to claim action it is not appropriate either to lay to find in such judgments a compelling down as a principle that the interpre- indication of general validity. Not only tative judgment delivered on the basis of do such judgments concern individual Article 177 of the EEC Treaty has an ex provisions but there is also evidence nunc effect in the absence of an express pointing in the opposite direction, either provision making it possible for the with regard to the effects of the rule Court to give an interpretative judgment interpreted or to those of the judgment directed solely towards the future. Such giving the interpretation. When asked a solution has the most serious the precise date on which a provision has inconveniences when the Court restricts acquired direct effect the Court itself to giving an interpretation in the sometimes prefers to use an essentially simplest and strictest sense of the term. ambiguous formula by stating that the The ex nunc effect of a judgment, far direct effect of the provision under from being justified by recourse to a interpretation goes back "at the latest" general principle, consequently cannot be

accepted except on the basis of the proposed solution is not subject to circumstances of the individual case and serious difficulties at the time of the it is not surprising that it was in the application of interpretative judgments in Defrenne case, referred to above, that the the national legal systems. When the Court took care to give reasons for its judgment itself lays down what its effects decision. in point of time are to be there are no special problems but difficulties may arise when the Court, as is most frequently the case, does not expressly decide the date on which the provision (c) Proposed solution interpreted is to take effect. The answer depends on the interpretative criteria applied or on the results of the interpre- tation itself. An interpretation based on the preliminary studies would imply that The defendants in the main action the judgment in question takes effect ex conclude from the foregoing that it is tunc, whereas an interpretation based on impossible to come to a general the evolution of the legislative and socio- conclusion either on behalf of the economic framework would suggest principle of the ex tunc effect or of that an effect ex nunc. An interpretative of the ex nunc effect of interpretative judgment which is purely declaratory judgments delivered in pursuance of must have an effect ex tunc whereas a Article 177 of the EEC Treaty. On the judgment introducing new rules into the other hand the solution of this problem system or applying unwritten principles depends upon the specific nature of the must on the other hand have an effect ex various cases in which the Court is called nunc. The context within which the upon to interpret Community law by judgment is delivered should also provide way of preliminary ruling and they base important evidence. their argument on the passage in the Defrenne judgment according to which the practical consequences of any judicial decision must be carefully taken into account (([1976] ECR at p. 480) and on the fact that it is appropriate to adopt a pragmatic rather than a dogmatic Whilst admitting that the scope of the approach. They refer also to the opinion judgment in Case 113/75, Frecassetti, is of Mr Advocate General Trabucchi in purely declaratory and has retroactive Case 2/73 (Geddo, [1973] ECR 884) and effect, the defendants in the main action that of Mr Advocate General Capotorti take the view that it is clear that the in Case 50/76 (Amsterdam Bulb, [1977] extension of its effects to relationships ECR 156). The determination of the prior to the judgment cannot take place effect ratione temporis of each interpre- so as to breach the fundamental principle tative judgment is a matter for the Court of the protection of legitimate expec- of Justice, just as it is for the Court to tation. It would be unjust to claim, determine the meaning of the provision during the five-year prescription period interpreted. after the import transaction, the payment of a difference in levy which the trader no longer has the opportunity to recover from his assigns. It does not need an analysis in depth to determine intuitively However, the defendants say that it is that the principle of the protection of appropriate to consider whether the legitimate expectation, in the absence of

a breach of Community rules by the protection and their commercial trader in good faith must be applied to transactions are the consequence of the facts of this case. Having regard irrevocable agreements contracted however to the seriousness of the definitively in the past at a time prior to economic consequences which might the delivery of the Frecassetti judgment. follow from an incorrect application of It would not be possible to find circum- the Frecassetti judgment the defendants stances in which the change in the legal take the view that it is necessary to give situation could have been so unfore- thorough examination to the problem. seeable. In this respect the defendants They recall that the principle of the refer to the administrative practice of the protection of legitimate expectation is Italian customs authorities and the part of the Community legal order and consistent case-law of the Corte di point out that Mr Advocate General Cassazione and of the lower Italian Mayras in his opinion in Joined Cases 44 courts until the Frecassetti judgment. to 51/77, Union Malt v Commission, They also refer to the observations [1978] ECR at p. 91, summarized as lodged by the Commission in this case follows the conditions required for and the fact that the Community traders to be able to make use of the institution had approved the practice of principle of the protection of legitimate the Italian authorities. To clinch the expectation : matter they also refer to a series of measures and proposals emanating from the Community institutions, in particular (a) They must be able to claim an a document from the Committee on established right or personal interests Customs Legislation dated 7 February worthy of protection; 1972 (Administration of the Customs Union 188/72), a preliminary draft directive of 27 December 1972 (GUD (b) The commercial transactions for 1049/72), a documentary note of 7 June which they claim that right or those interests must have been irrevocably 1973 (GUD 461/73), a preliminary draft entered into; of 24 July 1973 (GUD 569/73), a proposal for a Council directive of 21 December 1973 (Official Journal 1974, C 14, p. 45), which has meantime (c) The interference with that right or become Council Directive No with those interests must have been 79/695/EEC of 24 July 1979 on the unforeseeable and must have harmonization of procedures for the occurred without warning; release of goods for free circulation (Official Journal L 205, p. 19), opinions of the European Parliament and of the (d) Finally, there must be no overriding Economic and Social Committee on the public interest preventing such proposal for a directive (Official Journal personal interests from being taken 1974, C 85, p. 24, and C 125, p. 10) and into account. finally internal documents drawn up by the institutions after delivery of the judgment in Case 113/75, such as the note of 23 August 1976 of the Working The defendants take the view that all the conditions required for the application of Party on Economic Problems (R/12002/ the principle of the protection of 76), a note of 12 April 1977 ( R / 1 7 7 1 / legitimate expectation are satisfied in this 77), a note of 16 May 1977 ( R / l 161/77) case. They have an interest worthy of and a proposal for a directive of 28 July

1977 (R/1876/77), Artide 12 (2) of of information determined by the which entirely confirms the principle laid competent authorities themselves or down by the Court of Justice in the recognized by them as being in judgment in Case 113/75. accordance with their requirements where it is established that the declarant had acted in good faith and had complied with all the provisions laid For the rest the defendants in the main down in the rules in force. action take the view that the conduct of the Commission has been such as to make it liable inasmuch as, if the traders were not to be protected by the principle According to the defendants in the main of legitimate expectation, they would be action the Italian State complied with in a position to require it to pay that proposal for a regulation by compensation for the damage suffered by adopting Article 3 of Decree No 695 of them. the President of the Republic of 22 September 1978. That decree is accordingly entirely compatible with Community law. Finally the fourth condition, namely that there must be no overriding public interest preventing their personal In conclusion they claim that even if the interests from being taken into account, Court of Justice were to decide that in is also satisfied in this case. The principle its interpretative judgments defendants take the view that in fact delivered in pursuance of Article 177 there is no problem in applying as have a declaratory scope and an effect ex regards the future Community rules in tunc and that this in particular is the the sense in which they were interpreted position with regard to the judgment in by the Court since the relevant the Frecassetti case, it would be appro- transactions have all been performed and priate for the Court to acknowledge the terminated before the Frecassetti necessity for protecting the rights of judgment was delivered and that from traders who, in good faith, have scrupu- that point onwards all the Member lously observed the rules in question as States, including the Italian State, interpreted before the judicial decision conformed immediately with the modifying the points of reference. principle laid down by the judgment of the Court of Justice. It follows from the proposal for a regulation for the collection of duties in respect of traders, published in Official Journal C 138 of B — Observations of the Italian 11 June 1977, that the legitimate Government expectation of traders in good faith is always protected in cases similar to this one. It may be deduced from the second recital in the preamble thereto and more The Italian Government, after recalling particularly from Article 5 of the the history of the cases before the proposal that no action may be initiated national court, draws the Court's by the competent authorities for attention to the connexion between them collection where import duties or export and Case 61/79, Amministrazione delle duties subsequently found to be lower Finanze dello Stato v Denkavit Italiana. It than the amount which was legally due emphasizes that its observations in these have been calculated on the basis cases apply also to Case 61/79.

The question of principle raised in the they were not of that nature, would be two groups of cases in question has incompatible not only with the objectives already been mentioned in Case 33/76, of Article 13 (2) of the EEC Treaty but Rewe-Zentralfinanz eG and Rewe-Zentral also with those of secondary Community AG v Landwirtschafiskammer Jur das law by reason of the additional adverse Saarland [1976] ECR 1989, at least as effect on intra-Community trade which regards the duty to repay sums levied but would result from this. not owed. In the judgment delivered on 16 December 1976 by the Court it was not however necessary to give a ruling on the question which is expressly put Examining the opinion expressed in before it in these cases. particular by the Advocate General in Case 33/76 (Rewe), according to which the situation in that case was not comparable to that in the Defrenne case, the Italian Government considers that it — The temporal scope of an interpre- remains to be considered whether, in tative judgment view of the discrimination resulting from the various national limitation periods, the same importance should not be attached to the financial burden resulting Recalling and criticizing the arguments from the duty of repayment as that which had been submitted in Case attached to the harmful consequences of 33/76, the Italian Government empha- complete retroactivity in the Defrenne sizes in particular that the solution which case, having regard, in particular, to the it put forward arose from the judgment provisions of Article 6 (2) of the Treaty. delivered on 8 April 1976 in Case 43/75 (Gabrielle Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena [1976] ECR 455). In that judgment the Thus it is necessary to examine whether, Court acknowledged the direct effect of as a result of a judgment of the Court Article 119 of the EEC Treaty but setting aside an interpretation until then limited its temporal application to the generally accepted, traders are given the period after the date of its judgment, right, which they had not previously except as regards those workers who had exercised, to claim the repayment of already brought legal proceedings or certain duties and charges. Along the made an equivalent claim. same lines, it is necessary to examine whether in similar circumstances the Member States are given the right to claim sums to which they previously According to the Italian Government, considered they were not entitled when a the criteria laid down in the Defrenne judgment of the Court shows that in fact case are also decisive in cases such as those sums were legally payable. these. Although the limitation of the direct effect of Article 119 was decided only for reasons of expediency, the acknowledgement of a right to the As regards the first case, it might be repayment of sums paid at a time when it considered that a solution could easily be was not established that they were found if reference were made to the charges having an effect equivalent to provisions in each national legal order customs duties but when, on the governing the condictio indebiti. This contrary, it was generally accepted that reference to national law would however

result in different solutions since the With regard to the common agricultural possibility of repayment might even be policy, the regulations provided directly totally excluded by national legislation, that the levying of charges having an as shown by the judgment of 26 June equivalent effect was incompatible with 1979 (Case 177/78, Pigs and Bacon the application of the system of levies Commission v McCarron and Company even before the Commission adopted the Limited). first directive on charges having an equivalent effect, dating from 15 October 1963, without supplying The solution should therefore be sought accordingly any information or details within the context of the Community enabling those charges to be determined.

In these circumstances it is impossible to lay the In support of this argument, the Italian blame on the Member States for main- Government claims that the scope of the taining, until the interpretative judgment, concept of a charge having an equivalent charges having an equivalent effect, effect has not been defined by the otherwise it would be necessary to Treaty. Pursuant to Article 13 (2) of the consider that every customs official Treaty, the Member States should have should have independently taken progressively abolished charges having responsibility for deducing the an effect equivalent to customs duties consequences of the direct effect of the during the transitional period and prohibition on charges having an according to a timetable determined by equivalent effect before the Commission the Commission by means of directives had even issued the appropriate based on the rules laid down in Article directives and before the interpretative 14 (2) and (3) and directives issued by judgment of the Court. the Council pursuant to Article 14 (2). However, it is common knowledge that

It claims that the the new Member States. scope of the concept of a failure to fulfil

an obligation in the Community legal obligations under the Treaty and the order is, by reason of the institutional duty retroactively to eliminate the objectives of the Communities, different harmful effects produced by that failure from that of the same concept in to fulfil its obligations. The reasons national law. A State which has failed to which led the Court to depart from the fulfil its obligations has not been purely declaratory effect of its compelled by the Community institutions judgments, in other words the economic to recover the aid or the export refunds consequences, the conduct of the granted in breach of Community law. It Member States, the absence of action by also argues from Memorandum No the Commission and the incorrect 75425312 of the Commission of 30 May impression of the effect of the applicable 1975 issued as a result of the judgment Community rules, are also valid as delivered on 12 November 1974 in Case regards charges having an effect 34/74 (Société Roquette Frères v French equivalent to customs duties and, in State [1974] ECR 1217) on the in- general, as regards the case of sums terpretation of Article 4 a (2) of Regu- levied on the basis of a misinterpretation lation N o 974/71 of the Council. In that of the Community rules. memorandum, the Commission took the view that, by reason of the special circumstances of the case, Member States were not under a duty to recover the sums which should not have been paid if the article in question had been interpreted to the effect indicated by the Court. It follows logically that a different criterion cannot be used within the context of the same legal relationship and by reference to the same provision according to whether certain sums must The economic consequences result from be recovered or repaid by the national the simultaneous repayment of sums authorities. Thus the duty of repayment levied for years without any dispute and should not necessarily be considered as in the belief that they had to be paid; the consequence of the levying of sums that damage is variable and discrimi- not owed. natory according to the limitation periods laid down by each national legal system. The conduct of the Member States and the Commission's lack of action were also decisive, since the sums in question were paid and levied in the general and obvious belief that there was no breach of the Community rules. These arguments are particularly relevant as regards the system of public health inspection dues because of the The Italian Government emphasizes that complexity of the latter. It was not until the solution which it proposes is based 1970 when the Community rules on the on the judgment delivered in Case 43/75 common organization of the markets in (the Defrenne case, quoted above) in the sector of the various products subject which the Court expressly, although by to public health inspections had already way of exception, makes a distinction been in force for several years that the between the finding that there has been a Commission took action against two failure by a Member State to fulfil its Member States only; that action had no

The Italian Government then emphasizes that the repayment of the sums paid to the European Communities or to the Member States as a result of a misin- terpretation of the Community rules results in an actual enrichment of the As regards the analagous but converse traders concerned or more exactly in a case in which the misinterpretation of the higher and unforeseen profit margin Community rules has not given rise to because those traders have obviously the levying of duties which were, on the passed on the corresponding amounts in contrary, payable, it is, according to the the calculation of their production costs. Italian Government, certainly more difficult to consider the arguments which it put forward in relation to the first case to be relevant. There is a fundamental difference in that the levying of sums Article 92 of the EEC Treaty payable which have not however been paid and levied by mistake is in • accordance with the function and objectives of the rules interpreted incorrectly and because the A restitutio in integrum which proves administration's mistake constitutes more harmful than the damage for which precisely the normal and necessary it is to compensate is also impossible in condition for the claim for additional the light of the Community rules on payment. However, it cannot be competition. Repayment would result in excluded a priori that the principle of substance in an aid to national traders cessante ratione legis, cessat et ipsa lex may who have passed on to their customers also be relevant where it is necessary to . the burden improperly levied upon them recover years afterwards and possibly and would cause additional damage to with irreversible damage to those exporters of the other Member States concerned customs duties which should who have already suffered the actual have been levied. Arguments to this damage of a reduction in their export effect may be deduced from the above- transactions. According to the Italian mentioned memorandum of the Government, the retroactive elimination Commission and from the provisions of of a difference in treatment which in fact certain proposals for regulations already has already irreversibly affected business submitted in this connexion by the relationships by making them subject to a Commission. The general belief of system different from that intended by traders and of the customs authorities

might also be taken into consideration C — The Commission's observations since in this case only the charges considered as payable according to the misinterpretation were taken into consideration by the traders in question for the purpose of passing on the corresponding costs to third parties and of fixing their prices. According to the Italian Government, the principle of the protection of legitimate expectation After stating that the first question must cannot however justify this solution be understood as concerning the because, first, the Member States are not question whether a provision of under a duty of correct interpretation Community law must be applied to facts which is wider than or different from occurring prior to a judgment of the that imposed on any other person to Court of Justice in accordance with the whom the law applies, secondly, it is interpretation given by the Court, the impossible to envisage any legal duty Commission claims that an affirmative imposed on the trader concerned to reply appears inescapable having regard abide by an interpretation, on the to the nature and the actual purpose of a assumption that it is incorrect, and, reference for a preliminary ruling. Under thirdly, the principle of the protection of Article 164 of the EEC Treaty the Court legitimate expectation cannot be called in has a rôle which is typically judicial and aid in relation to the application of excludes any legislative function. That provisions which have the same article is an expression of the principle of mandatory force as regards both legality by virtue of which the Court is Member States and individuals. to decide according to the law and not on the basis of considerations of expediency. In this context Article 177 brings about a close collaboration between the Court of Justice and national courts; the Court interprets the legislative provision generally and in the In conclusion, the Italian Government abstract whilst it is for the national court proposes that the Court should rule that to apply that interpretation to the in the Community legal order the duty specific case. of repayment and the duty to recover sums which have not been levied does not necessarily correspond to the right not to pay them and to the duty to levy them and that the correct retroactive application of the Community rules cannot be required where a general misinterpretation common to both Judgments given by the Court of Justice parties to the legal customs relationship in pursuance of Article 177 necessarily has given rise medio tempore to payments bind the national court seised of the not owed or to the failure to levy sums main action so as to make it possible to payable, except, as from the dates on attain the purpose for which references which the Community rules were for preliminary rulings were instituted as interpreted authoritatively and the the Court expressly recalled in its aspects of the conflict between those judgments delivered on 3 February 1977 rules and the provisions of national law in Case 52/76 (Benedetti v Munart, were settled authoritatively. [1977] ECR 163) and on 24 June 1969 in

Thus the Court's interpretation necessarily influences the Community The effect ex tunc of an interpretation provision in question in the sense that it given by the Court of Justice in a is to be subsequently applied by any judgment delivered in pursuance of national court in accordance with that Article 177 does however meet with an interpretation each time the question insurmountable obstacle as regards legal arises, subject to a variation resulting situations which have already taken from a fresh reference for a preliminary definitive effect. Situations which have ruling. become unassailable, for example on grounds of prescription, lapse of time or by force of res judicata cannot be called in question. In the present state of The fact that the Court is seised of an Community law these matters are action relating to facts which occurred governed by the various national legal prior to the judgment of the Court systems. cannot have any significance in this matter. Next the Commission considers whether the principle of the ex tunc effect of The idea that judgments of the Court of interpretative judgments is not, in whole Justice delivered in pursuance of Article or in part, paralysed by other principles

JUDGMENT OF 27. 3. 1980 — JOINED CASES 66, 127 AND 128/79

AMMINISTRAZIONE DELLE FINANZE v SALUMI

In the present state of Community law it Ill — Oral procedure is permissible but not mandatory for national law, on grounds of legitimate expectation, to restrict the State's right At the sitting held on 25 October 1979 to act. the Italian Government, represented by

JUDGMENT OF 27. 3. 1980 — JOINED CASES 66, 127 AND 128/79

A. Marzano, Avvocato dello Stato, the Alessi, a member of its Legal defendants in the main action, Department, submitted oral argument. represented by G. M. Ubertazzi and F. Capelli, of the Milan Bar, and the The Advocate General delivered his Commission of the European opinion at the sitting held on 9 January Communities, represented by G. P. 1980.

Decision

1 By three orders of 11 January 1979, the first of which (Case 66/79 Meridio- nale Salumi) was lodged at the registry of the Court of Justice on 20 April 1979 and the other two (Case 127/79 Vasanelli and Case 128/79 Ultrocchi) on 9 August 1979, the Corte Suprema di Cassazione, Rome, submitted for a preliminary ruling under Article 177 of the EEC Treaty two questions rela- ting to the interpretation of Article 177 of the EEC Treaty in regard to the scope of interpretative judgments delivered by the Court of Justice in the context of that provision.

2 By those questions, which are framed in identical terms in the three orders making the references, the Court is asked :

4 At the time, the amount of those levies had been calculated by the Italian customs authorities by applying the method, which was also recommended in customs matters by the Commission, whereby, in the event of a reduction in customs duties occurring after the import declaration had been submitted but before the goods were released for home use, the more favourable rate was to be applied if the importer concerned so requested.

5 By its judgment of 15 June 1976 in Case 113/75 Frecassetti v Amministrazione delle Finanze dello Stato [1976] ECR 983 the Court of Justice held, however, that that method could not be applied to agricultural levies on the import- ation of products from non-member countries, which had to be uniformly calculated in accordance with the rate of levy in force on the day on which the import declaration was accepted by the customs authorities. Conse- quently, the traders concerned would have to pay levies at a higher amount.

8 Article 177 of the Treaty provides that the Court of Justice shall have juris- diction to give preliminary rulings, in particular, concerning the interpret- ation of the Treaty and of the acts of the institutions. The purpose of that jurisdiction is to ensure the uniform interpretation and application of Community law, and in particular the provisions which have direct effect, through the national courts.

9 The interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the EEC Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdic- tion are satisfied.

AMMINISTRAZIONE DELLE FINANZE v SALUMI

io As the Court recognized in its judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena [1976] ECR 455, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.

i4 The arrangements for the fixing and the conditions of collection of the financial charges which the Community is empowered to levy and which specifically constitute its own resources, such as customs duties and agricul- tural levies, are laid down by the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Com- munity's own resources (Official Journal, English Special Edition 1970 (I), p. 224) and the regulations in implementation thereof. These provisions must be considered within the framework of the general arrangements on the financial provisions of the Treaty which, like the corresponding arrange- ments of the Member States, are governed by the general principle of equa- lity which requires that comparable situations may not be treated differently unless difference of treatment is objectively justified.

is It follows that the system of revenues which are contributed to the Com- munity budget must be so arranged as to constitute a uniform burden on all persons who meet the conditions specified in the Community provisions on such burdens. That requirement implies that there must be equality of treat- ment in respect of the procedural and substantive conditions on which traders may challenge Community charges imposed upon them by deman- ding a refund where payment was wrongly made. It implies an analogous equality in the conditions subject to which the authorities of the Member States, acting on behalf of the Community, may collect the said charges and, if necessary, recover financial benefits which were wrongly granted.

i9 That consideration has found expression in the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Community's own resources (already cited), Article 6 of which states in express terms that Community resources — which include agricultural levies — "shall be collected by the Member States in accordance with national provisions imposed by law, regulation or administrative action, which shall, where necessary, be amended for that purpose."

20 That express reference to national laws is, however, subject to the same limits as those affecting the implied reference, the need for which has been acknowledged in the absence of Community provisions, inasmuch as the application of national legislation must be effected in a non-discriminatory manner having regard to the procedural rules relating to disputes of the same type, but purely national, and in so far as procedural rules cannot have the result of making impossible in practice the exercise of rights conferred by Community law.

JUDGMENT OF 27. 3. 1980 — JOINED CASES 66, 127 AND 128/79

2i A special system of national rules relating to the collection of Community charges and dues which restricts the powers granted to the national authority to ensure the collection of those charges as compared with the powers granted to the same authority in regard to national charges or dues of the same kind is therefore not in accordance with Community law.

Costs

22 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the actions pending before the national court, the decision on costs is a matter for that court.

2. A special system of national rules relating to the collection of Com- munity charges and dues which restricts the powers given to the national authority to ensure the collection of those charges as compared with the powers granted to the same authority in respect of national charges or dues of the same kind is not in accordance with Community law.

Kutscher O'Keeffe Touffait Menens de Wilmars Pescatore

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 27 March 1980.

A. Van Houtte H. Kutscher Registrar President

O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 9 JANUARY 1980 '